Fast-Tracking Justice: India’s New(ish) Strategy to Curb Corruption

How do you deal with the problem of more than 6,000 corruption cases and nearly 5,000 criminal cases pending against politicians, some dating back almost 40 years? The answer, according to India’s Supreme Court: put a one-year time limit on cases involving politicians.

This decision, which was issued this past September in a “public interest litigation” case, seeks to increase public confidence in the judicial process and to make the legal system more effective in addressing India’s pervasive political corruption. Corrupt politicians in India are typically able to slow down legitimate prosecutions, for example by exploiting India’s complex court filing procedures, leading the cases to drag on for years or even decades. This delay increases the chances that key evidence will be lost or obscured—a process that corrupt defendants can and do help along by bribing, threatening, or even killing witnesses. By preventing cases from ending in conviction, corrupt politicians have created a de facto culture of impunity. The problem is particularly acute in the current parliament, where 43% of new members elected in 2019 had pending criminal charges. The Supreme Court’s order seeks to address this and other problems.

This isn’t the first time that the Supreme Court has ordered fast-tracking. The Supreme Court previously called for time-bound trials against politicians back in 2011, during the tenure of the corruption-riddled Congress Party, yet the case backlog remained. There is reason to believe, though, that this time is different. The current ruling Bharatiya Janata Party (BJP) swept into power in part by making anticorruption efforts a priority, and there are signs that the BJP’s general commitment to anticorruption may be having a meaningful impact in the context of the one-year order. Following the Supreme Court’s ruling, the highest courts in (most) states submitted action plans for dispatching cases, and India’s Solicitor General said that he is “100% serious” about completing trials within a year. Despite certain serious challenges to effective implementation of this new fast-tracking program, India’s renewed commitment to moving the wheels of justice more quickly could prove powerful in holding corrupt politicians accountable and restoring public confidence in the judiciary.

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How Can India Cleanse Its Politics of Dirty Money?

India’s 875 million voters make it the world’s largest democracy. Yet Indian elections, though generally seen as free and fair, have become the country’s “fountainhead of corruption.”Parties and candidates spend billions getting themselves elected—current forecasts predict $8.5 billion will be spent in the 2019 election, making it the most expensive election globally. Much of that money comes from illegal or at least questionable sources, a problem exacerbated by the fact that campaign financing in India is a black box, with no transparency into donors or income sources. Recent changes by the Modi government have made the process even more opaque. And much of the money raised is spent illegally. For example, up to 37% of Indian voters have received money for votes. 

The massive amount that politicians are willing to raise and spend to win elections is understandable when the payoff to the winning candidate is considered. Putting aside any ideological or egotistical motives for seeking public office, there’s also a material incentive: studies have found that, in the years following an election, winning candidates’ assets increase by 3-5% more than losing candidates’ assets, and this “winner’s premium” is even higher in more corrupt states and for winners holding ministerial positions. The material benefits of office may also partly explain the alarming percentage of Indian politicians with criminal histories. Currently, over a third of Members of Parliament (MPs) in the Lok Sabha (the Lower House of the National Parliament), are facing at least one serious criminal charge, and politicians with cases pending against them are statistically more likely to win elections. Moreover, the ever-greater spending on elections means that winners, in addition to lining their own pockets and saving for the next election, need to repay those who helped them prevail. The more money politicians spend on elections, the more they need to earn back or repay through political favors.

The high payoff to candidates who win elections (often because of the opportunities for corruption) both attracts dishonest individuals to seek office and encourages ever-higher election spending, which in turn inspires corrupt behavior to repay debts, whether through money or political favors. Therefore, any serious attempt to reduce corruption in India has to begin with electoral reform. The constitutional body tasked with administering elections in India is the Election Commission (EC). The EC oversees the election process, and it also can issue advisory opinions (though not binding decisions) regarding the post-election disqualification of sitting MPs and Members of State Legislative Assemblies (MLAs). The EC is also responsible for scrutinizing the election expense reports submitted by candidates. But the EC is in many ways a toothless tiger, able only to recommend actions and electoral reform to Parliament, without any real power to fix the electoral system. 

There are, nonetheless, a few things that the EC could do now, acting on its own, to help address at least some of these problems. But more comprehensive and effective reform will require action by the legislature or the Supreme Court.

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The “Master of the Roster”: Reforming the Role of the Chief Justice of India

“There have been instances where cases having far-reaching consequences for the nation and the institution have been assigned by the chief justices of this court selectively to the benches ‘of their preference’ without any rational basis for such assignment.” This sharp critique of the Supreme Court of India was not leveled by a losing appellant or civil society group, but rather by Justice Jasti Chelameswar. On January 12, 2018, Justices Chelameswar, Ranjan Gogoi, Madan Lokur, and Kurian Joseph, the four most senior justices of the Supreme Court of India (other than the Chief Justice), took the extraordinary step of speaking to the public about their concern with bias in how Chief Justice of India (CJI) Dipak Misra was assigning cases. The four justices accused Chief Justice Misra of selectively setting benches to shape the outcome of particular cases, which not only cuts against the rule of law and fundamental fairness, but also implicates broader concerns of judicial corruption. In publically criticizing the assignment practices of the current Chief Justice, these Justices set off an unprecedented institutional crisis for the court. Stabilizing the institution and combating corruption and bias requires serious action, including reducing the unilateral power the CJI has over case assignment.

To appreciate the significance of the CJI’s power of case assignment, and the ways this power can be abused, a bit of background on the Court is necessary. The Supreme Court of India is comprised of the CJI and up to 30 justices, although it currently only has 24 serving justices. The Court hears cases in division benches (comprised of two or three justices), and these division benches come together to form a constitutional bench (comprised of five or more justices) to settle fundamental questions of law. The CJI has the sole authority to set up division benches and assign cases, resulting in the label of the CJI as the “master of the roster.” That authority can be—and allegedly has been—abused. For example, in the Prasad Educational Trust case, although allegations of bribes paid to fix the outcomes of Supreme Court cases implicated Chief Justice Misra, he nonetheless listed the case in front of himself and several relatively junior Justices. When asked by an attorney in the case to recuse himself, the Chief Justice refused and threatened to hold the attorney in contempt.

In response to the criticisms leveled by his four colleagues regarding biased assignment of cases, Chief Justice Misra took a striking step of publicizing, for the first time, the Supreme Court’s roster, which details which types of cases will be heard by which justices. The publically released roster system, which took effect on February 5 and was recently altered, assigns cases based on subject category to different justices. For example, the Chief Justice himself is assigned, among other categories, social justice matters, election matters, contempt of court matters, habeas corpus matters, and public interest litigation (PIL) cases. The roster details subject categories for the twelve most senior justices of the Supreme Court, and there are overlapping categories (e.g. criminal matters, civil matters, etc.) between the justices. But while publication of the roster certainly makes the assignment process more transparent, it nevertheless falls short of addressing the CJI’s unchecked power and discretion in allocating cases for four primary reasons:

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